Freedom of Information Act; Miscellaneous Rules, 15680-15685 [2014-05955]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 79, Number 55 (Friday, March 21, 2014)]
[Rules and Regulations]
[Pages 15680-15685]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-05955]


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FEDERAL TRADE COMMISSION

16 CFR Part 4


Freedom of Information Act; Miscellaneous Rules

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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SUMMARY: The Federal Trade Commission is updating its regulations 
regarding fees for the provision of

[[Page 15681]]

services in disseminating information and records to the public. The 
updates reflect changes in, and additions to, the types of services 
that the Federal Trade Commission provides, and account for changes in 
the costs of providing such services.

DATES: These amendments are effective March 21, 2014.

FOR FURTHER INFORMATION CONTACT: G. Richard Gold, Attorney, (202) 326-
3355, Office of the General Counsel, Federal Trade Commission, 600 
Pennsylvania Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: In a document previously published in the 
Federal Register, 78 FR 13570 (Feb. 28, 2013), the Federal Trade 
Commission (FTC or Commission), as required by the Freedom of 
Information Act (FOIA), sought comments on proposed revisions to its 
fee regulation. See 5 U.S.C. 552(a)(4)(A)(i). The FTC proposed to 
change its fee schedule to implement the 2007 FOIA Amendments as 
appropriate \1\ and to revise the agency's fee schedule to account for 
new and discontinued services and the current costs of providing 
services. The Commission stated that the proposed changes would also be 
useful in providing additional notice to the public and to the FTC's 
professional and administrative staff about the procedures governing 
how the agency responds to FOIA requests. The Commission is adopting 
the proposed rules with some further revisions in response to public 
comments.
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    \1\ The FOIA was amended in late 2007 by the Openness Promotes 
Effectiveness in our National Government Act of 2007, Public Law 
110-175, 121 Stat. 2524.
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A. Public Comments

    The FTC received six comments in response to the proposed 
rulemaking changes; one each from Troy Abraham, William A. Cross, Ann 
Fennell, the Electronic Privacy Information Center (EPIC), Michael 
Ravnitzky, and Neal Seaman.\2\
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    \2\ See https://ftc.gov/os/comments/FOIAfeeschedule/index.shtm 
for links to each comment.
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    The comments from EPIC and Mr. Ravnitzy generally supported the 
proposed rule amendments, with certain recommended changes, as 
discussed below. One comment did not address the proposed amendments at 
all, while the remaining comments took issue with FOIA fees generally, 
suggesting that they be kept at current levels, lowered, waived, or 
eliminated.\3\
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    \3\ Mr. Abraham stated that, while he supports ``this bill'' 
(presumably the FOIA) because ``people have the right to have full 
access to information,'' the FTC should lower or waive FOIA fees, 
since ``hidden information in the government should be provided free 
of charge.'' Mr. Cross opposed a fee increase, stating that it 
``amounts to another tax.'' He added his view that public identity 
theft would increase if fees are increased. Ms. Fennell stated that 
``fee increases should not be allowed unless they are balanced by 
all of the proposed pro-public changes.'' Mr. Seaman's comment 
offers his view of the overall effectiveness of the FTC without 
addressing the proposed rule amendments.
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    As set out in the Notice of Proposed Rulemaking, the rule changes 
are consistent with statutory and Office of Management and Budget (OMB) 
mandates. The FOIA provides for the charging of fees ``applicable to 
the processing of requests,'' \4\ and sets limitations and restrictions 
on the assessment of certain fees.\5\ A separate provision provides for 
the waiver or reduction of fees if certain standards are satisfied.\6\ 
The Freedom of Information Reform Act of 1986 (FOIA Reform Act) 
directed the OMB to establish guidelines containing a uniform schedule 
of fees for individual agencies to follow when promulgating their own 
FOIA fee regulations. 5 U.S.C. 552(a)(4)(A)(i). On March 27, 1987, the 
OMB issued its Uniform FOIA Fee Schedule and Guidelines (OMB Fee 
Guidelines) but also concluded that creation of a government-wide fee 
schedule was precluded by language of the FOIA Reform Act that required 
``each agency's fees to be based upon its direct reasonable operating 
costs of providing FOIA services.'' See 52 FR at 10015. The FOIA Reform 
Act mandated that agencies conform their fee schedules to these 
guidelines. The guidelines specifically direct that ``[a]gencies should 
charge fees that recoup the full allowable direct costs they incur . . 
. and shall use the most efficient and least costly methods to comply 
with requests for documents made under the FOIA.'' Id. at 10018.
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    \4\ 5 U.S.C. 552(a)(4)(A)(i).
    \5\ 5 U.S.C. 552(a)(4)(A)(ii), (iv)-(vi), (viii).
    \6\ Id. Sec.  552(a)(4)(A)(iii).
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EPIC Comment

    EPIC states that it largely supports the Commission's proposals 
because the rule changes benefit FOIA requesters. For example, EPIC 
concurs with the Commission proposal to increase the threshold for 
small-charge fee waivers ``from those that do not exceed $14 to those 
under $25,'' and with the proposed change that complies with the 2007 
FOIA amendment provision precluding agencies from assessing search fees 
for untimely responses.
    Additionally, EPIC specifically urges the FTC to: (1) Revise its 
definition of a news media representative; (2) clarify which documents 
are public information and ensure that hyperlinks to those records work 
properly; (3) disclose private sector contract rates for FOIA 
processing; (4) refrain from prematurely closing FOIA requests; and (5) 
adopt alternative dispute resolution or arbitration to resolve 
delinquent FOIA fees.
    First, EPIC claims that the Commission's proposed definition of 
``representative of the news media'' \7\--specifically the phrases 
``electronic dissemination of newspapers through telecommunications 
services'' and the definition of a ``freelance'' journalist--are dated. 
EPIC recommends that the FTC revise this provision to read as follows:
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    \7\ For Rule 4.8(b)(2)(iii), the Commission proposed this 
revised definition: ``A representative of the news media is any 
person or entity that gathers information of potential interest to a 
segment of the public, uses its editorial skills to turn the raw 
materials into a distinct work, and distributes that work to the 
public. The term `news' means information that is about current 
events or that would be of current interest to the public. Examples 
of news media entities include television or radio stations 
broadcasting to the public at large and publishers of periodicals 
(but only in those instances where they can qualify as disseminators 
of news) who make their products available for purchase by or 
subscription by the general public or free distribution to the 
general public. These examples are not intended to be all-inclusive. 
As traditional methods of news delivery evolve (e.g., electronic 
dissemination of newspapers through telecommunications services), 
such alternative media shall be considered to be news-media 
entities. A freelance journalist shall be regarded as working for a 
news-media entity if the journalist can demonstrate a solid basis 
for expecting publication through that entity, whether or not the 
journalist is actually employed by the entity. A publication 
contract would provide a solid basis for such an expectation, but 
the past publication record of a requester may also be considered in 
making such a determination.''

    The term ``representative of the news media'' refers to any 
person actively gathering information to publish or broadcast news 
to the public. The term ``news'' means information that is about 
current events or that would be of current interest to the public. 
Examples of news media entities include print, broadcast and webcast 
news services available for purchase or subscription by the general 
public, or available to the general public by means of an online 
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search.

The Commission declines to accept this proposal, and has determined to 
retain and adopt as final its proposed definition for a representative 
of the news media, which more closely conforms to the statutory 
definition set forth in the 2007 FOIA Amendments.\8\
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    \8\ Cf. 5 U.S.C. 552(a)(4)(A)(ii).
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    Second, EPIC asks that the Commission clarify the proposed revision 
to Rule 4.8(b)(5),\9\ claiming that

[[Page 15682]]

``in the digital reading room context, making public information 
available `while supplies last' is inapposite.'' EPIC recommends that 
the Commission revise the rule language to read as follows:
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    \9\ Proposed Rule 4.8(b)(5) would read as follows: ``Materials 
available without charge. These provisions do not apply to recent 
Commission decisions and other public materials that may be made 
available to all requesters without charge while supplies last.''
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    (5) Materials available without charge. These provisions do not 
apply to public records, including but not limited to Commission 
decisions, orders, and other public materials that may be made 
available to all requesters without charge.
    The Commission agrees and is incorporating EPIC's recommended 
language for the final amended version of Rule 4.8(b)(5).
    Third, EPIC asks that the Commission disclose private sector 
contract rates for FOIA processing. The Commission agrees and intends 
to make available on the Public Record the appropriate sections of each 
of the two contracts to the extent permitted by, and in accordance with 
any notice required under, sections 6(f) and 21 of the FTC Act, or 
other applicable law. As discussed in the Notice of Proposed 
Rulemaking, the agency maintains microfiche storage and management 
contracts with Iron Mountain Archival Services (Iron Mountain) and the 
National Archive and Records Administration's Washington National 
Records Center (WNRC).\10\ The contract with Iron Mountain was awarded 
after full and open competitive bidding. Since WNRC is part of the 
National Archives and Records Administration (NARA), the FTC's contract 
with WNRC is technically an interagency agreement. The OMB Fee 
Guidelines encourage agencies ``to contract with private sector 
services to locate, reproduce and disseminate records in response to 
FOIA Requests when that is the most efficient and least costly method. 
When doing so . . . agencies should ensure that the ultimate cost to 
the requester is no greater than it would be if the agency itself had 
performed these tasks.'' See 52 FR at 10018. The Commission has 
determined that the fees incurred by the requesters are no greater for 
the services that Iron Mountain and WNRC perform than they would be if 
the Commission staff itself performed these tasks.
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    \10\ Iron Mountain Contract  FTC-10-H0233 and 
Washington National Records Center (WNRC) Contract  FTC-12-
I-0009.
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    Fourth, EPIC also asks that the Commission revise its proposed 
procedures for closing FOIA requests where the requester has not agreed 
that it will pay the fee after the request has been processed. The 
Commission proposed that--

    If the agreement required by this section is absent, and if the 
estimated fees exceed $25.00, the requester will be advised of the 
estimated fees and the request will not be processed until the 
requester agrees to pay such fees. If the requester does not respond 
to the notification that the estimated fees exceed $25.00 within 10 
calendar days from the date of the notification, the request will be 
closed.\11\
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    \11\ See Proposed Rule 4.8(d)(3).

EPIC states that Commission should grant requesters additional time to 
assess their financial ability to pay fees associated with processing 
their FOIA requests. The Commission agrees that extra time would be 
beneficial to FOIA requesters and is extending the timeframe to 20 
calendar days. The Department of Justice's Office of Information 
Policy, which oversees compliance by federal government agencies with 
FOIA, concurs with this time frame.
    Finally, EPIC asks that when resolving delinquent FOIA fees the 
Commission first pursue alternative dispute resolution and arbitration 
before employing other legally authorized means such as disclosure to 
consumer reporting agencies and use of collection agencies.\12\ EPIC 
describes the FTC as the ``nation's consumer protection agency,'' 
charged with enforcing the Fair Debt Collection Practices Act (FDCPA) 
and notes that in this role, the FTC sometimes observes abusive debt 
collection practices. The FTC agrees that there are situations where 
alternative dispute resolution methods are appropriate and has revised 
the language to clarify the Commission may use these methods when 
appropriate.
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    \12\ See proposed Rule 4.8(k) in the Notice of Proposed 
Rulemaking.
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Michael Ravnitzky's Comment

    Mr. Ravnitzky stated that some of the Commission's recommended 
changes to the fee regulation seem reasonable but he sought 
clarification regarding a few proposals. For example, he considered the 
proposal to define the term ``duplication'' in proposed Rule 4.8(a)(2), 
which includes the process of converting paper to electronic format, as 
reasonable but requested that the rule clarify that duplication costs 
for converting paper to electronic format should not apply when the 
Commission already maintains the record in electronic format. Mr. 
Ravnitzky adds that, when proposed Rule 4.8(a)(2) is read in 
conjunction with proposed Rule 4.8(b)(6), the text does not make clear 
that electronic scanning applies the quarterly hour rate of the 
operator but not the per page duplication fee. We understand Mr. 
Ravnitzky's concern. The definition for ``duplication'' in proposed 
Rule 4.8(a)(2) states as follows:
    The term duplication refers to the process of making a copy of a 
document for the purpose of releasing that document in response to a 
request for Commission records. Such copies can take the form of paper 
copy, microform, audio-visual materials, or machine readable 
documentation such as magnetic tape or computer disc. For copies 
prepared by computer and then saved to a computer disc, the Commission 
charges the direct costs, including operator time, of production of the 
disc or printout if applicable. Where paper documents must be scanned 
in order to comply with a requester's preference to receive the records 
in an electronic format, the requester shall pay the direct costs 
associated with scanning those materials.
    Therefore, if the requester seeks a response in electronic format 
and a paper record must be converted to comply with that request, it is 
clear that the agency can charge both operator time for the conversion 
and the output format (if it is computer disc, the fee for the disc). 
If the requester seeks responsive information in electronic format 
which already exists in electronic format, the Commission can charge 
for the operator time to copy/convert from one electronic format to the 
specific electronic format desired by the requester (for example, the 
time for copying/converting information directly from the computer to a 
computer disc and the fee for the computer disc). Thus, although the 
Commission agrees that operator time for converting paper to electronic 
format should not be charged when the information already exists in 
electronic format, there may be duplication charges associated with 
converting from one electronic format to another electronic format that 
serves as the output given to the requester. In the final rule, the 
Commission clarifies that duplication costs include direct costs 
associated with copies saved to computer disc and other output formats. 
The final rule also adds an additional line to Rule 4.8(b)(6)'s 
schedule of direct costs to clarify allowable duplication costs for a 
non-paper format of reproduction. If the output format is paper, then 
the Commission will continue to charge per page as allowable per the 
requester's fee category.
    Regarding the introductory table of fee categories set out in 
proposed Rule 4.8(b), Mr. Ravnitzky claims that the proposed fee 
category of ``Other (General Public)'' is inaccurate and that the FOIA 
expressly sets out ``all other

[[Page 15683]]

requesters'' for this default category. The Commission agrees and has 
adjusted this category to ``All other requesters (including members of 
the general public).''
    Regarding proposed Rule 4.8(b)(7) on allowable fee charges for 
untimely responses and exceptions for unusual or exceptional 
circumstances, Mr. Ravnitzky argues the provision for exceptions is 
ambiguous and not clearly defined. The revised rule language 
incorporates by reference the FOIA statutory standard and factors 
provided in the legislative history. See 5 U.S.C. 552(a)(6), see also 
H.R. Rep. No. 104-795, at 24-25, 1996 U.S.C.C.A.N. 3448, 3468 (1996) 
(specifying factors that may be considered in determining whether 
``exceptional circumstances'' exist). The Commission is therefore 
adopting as final proposed Rule 4.8(b)(7).
    For proposed Rule 4.8(c) on information needed to make fee category 
determinations, Mr. Ravnitzky claims that the description lacks a 
presumption of the requester's good faith statement in a request. The 
Commission's determination of the appropriate category for an 
individual requester depends upon the intended use of the information 
sought, and also, for some categories, on the identity of the 
requester.\13\ The OMB FOIA Fee Guidelines also specify that where 
``use is not clear from the request . . . agencies should seek 
additional clarification before assigning the request to a specific 
category.'' \14\ The FTC solicits the amount of information sufficient 
to ensure that requesters meet the statutory standards. The Commission 
is adopting as final proposed Rule 4.8(c) which includes an additional 
clarifying instruction that asks requesters whether the request is for 
commercial or noncommercial purposes.
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    \13\ See 5 U.S.C. 552(a)(4)(A)(ii).
    \14\ See OMB FOIA Fee Guidelines, 52 Fed. Reg. at 10018; see 
also McClellan v. Carlucci, 835 F.2d 1282, 1287 (9th Cir. 1987) 
(``Legislative history and agency regulations imply that an agency 
may seek additional information when establishing a requester's 
category for fee assessment.'').
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    Finally, for proposed Rule 4.8(e)(2) setting out fee waiver 
standards, Mr. Ravnitzky claims the provision is cumbersome and should 
incorporate a presumption of good faith. The statutory fee waiver 
standard contains two basic requirements: the public interest 
requirement (corresponding to/incorporated by fee waiver factors 
(i)(A)-(D) in Rule 4.8(e)(2)); and the requirement that the requester's 
commercial interest in the disclosure, if any, must be less than the 
public interest in it (corresponding to/incorporated by fee waiver 
factors (ii)(A)-(B) in the Rule).\15\ Both of these requirements must 
be satisfied by the requester before properly assessable fees are 
waived or reduced under the statutory standard. Further, requesters 
should address both of the statutory requirements in sufficient detail 
for the agency to make an informed decision as to whether it can 
appropriately waive or reduce the fees in question.\16\ Thus, the 
Commission is simply following the statutory standard on fee waiver 
determinations to ensure that the public gets the benefit of the 
information that is released to the requester without charge. The 
Commission is making one clarification to Rule 4.8(e)(1) to ask for 
sufficient detail in fee waiver requests and is otherwise adopting the 
remainder of proposed Rule 4.8(e)(2) as final.
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    \15\ See 5 U.S.C. 552(a)(4)(A)(iii).
    \16\ See, e.g., Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 
1312 (D.C. Cir. 2003) (reiterating that requests for fee waivers 
``must be made with reasonable specificity . . . and based on more 
than conclusory allegations'') (quotation marks and internal 
citations omitted); McClellan, 835 F.2d at 1285 (stating that 
conclusory statements will not support fee waiver request).
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    Certain proposed rule changes did not garner any comment. 
Accordingly, the Commission adopts as final the proposed rule changes 
to Rule 4.8(a)(3)-(4), 4.8(b)(2)(i)-(ii), 4.8(b)(4), and 4.8(f). Rule 
4.8(b)(3) is adopted as final with an additional formatting change to 
be consistent with other sections.

Regulatory Flexibility Act and Paperwork Reduction Act

    The Commission certifies that the Rule amendments set forth in this 
document do not require initial or final regulatory analyses under the 
Regulatory Flexibility Act. See 5 U.S.C. 603(a) and 604(a). Those 
requirements do not apply to agency rules of practice and procedure 
that are legally exempt from the notice-and-comment requirements of the 
Administrative Procedure Act. See 5 U.S.C. 553(b)(3)(A). In any event, 
the Commission does not believe the amendments will have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act. See 5 U.S.C. 605(b). The 
Commission anticipates that the economic impact of the amendments will 
be minimal, if any, and most requests for access to FTC records are 
filed by individuals who are not ``small entities'' within the meaning 
of that Act. Id. at 601(6). The Rule amendments also do not contain 
information collection requirements within the meaning of the Paperwork 
Reduction Act, 44 U.S.C. 3501-3520.

List of Subjects in 16 CFR Part 4

    Administrative practice and procedure, Freedom of Information Act.

    For the reasons set forth in the preamble, the Federal Trade 
Commission is amending Title 16, Chapter I, Subchapter A of the Code of 
Federal Regulations as follows:

PART 4--MISCELLANEOUS RULES

0
1. The authority citation for Part 4 continues to read as follows:

     Authority: 15 U.S.C. 46, unless otherwise noted.


0
2. Amend Sec.  4.8 by revising paragraphs (a)(2), (a)(3) and (a)(4), 
the introductory text of paragraph (b), (b)(2), (b)(3), (b)(4), (b)(5), 
and (b)(6), by adding a new (b)(7), and by revising paragraphs (c), 
(d), (e), (f) and (k), to read as follows:


Sec.  4.8.  Costs for obtaining Commission records.

    (a) * * *
    (2) The term duplication refers to the process of making a copy of 
a document for the purpose of releasing that document in response to a 
request for Commission records. Such copies can take the form of paper 
copy, microform, audio-visual materials, or machine readable 
documentation such as magnetic tape or computer disc. For copies 
prepared by computer and then saved to a computer disc, the Commission 
charges the direct costs, including operator time, of production of the 
disc or other output format. Where paper documents must be scanned in 
order to comply with a requester's preference to receive the records in 
an electronic format, the requester shall pay the direct costs 
associated with scanning those materials. As set out in Sec.  4.8(b), 
certain requesters do not pay for direct costs associated with 
duplicating the first 100 pages.
    (3) The term review refers to the examination of documents located 
in response to a request to determine whether any portion of such 
documents may be withheld, and the redaction or other processing of 
documents for disclosure. Review costs are recoverable from commercial 
use requesters even if a record ultimately is not disclosed. Review 
time includes time spent considering formal objections to disclosure 
made by a business submitter but does not include time spent resolving 
general legal or policy issues regarding the release of the document.
    (4) The term direct costs means expenditures that the Commission

[[Page 15684]]

actually incurs in processing requests. Direct costs include the salary 
of the employee performing work (the basic rate of pay for the employee 
plus 16 percent of that rate to cover benefits) and the cost of 
operating duplicating machinery. Not included in direct costs are 
overhead expenses such as costs of document review facilities or the 
costs of heating or lighting such a facility or other facilities in 
which records are stored. The direct costs of specific services are set 
forth in Sec.  4.8(b)(6).
    (b) Fees. User fees pursuant to 31 U.S.C. 9701 and 5 U.S.C. 552(a) 
shall be charged according to this paragraph, unless the requester 
establishes the applicability of a public interest fee waiver pursuant 
to Sec.  4.8(e). The chart summarizes the types of charges that apply 
to requester categories set out in paragraphs (b)(1)-(b)(3).

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                                         Fee charged for all      Fee charged for all
         Requester categories                search time              review time          Duplication charges
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Commercial...........................  Fee....................  Fee....................  Fee charged for all
                                                                                          duplication.
Educational, Non-commercial            No charge..............  No charge..............  No charge for first 100
 Scientific Institution, or News                                                          pages.
 Media.
All other requesters (including        Fee after two hours....  No charge..............  No charge for first 100
 members of the general public).                                                          pages.
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* * * * *
    (2) Educational requesters, non-commercial scientific institution 
requesters, and representative of the news media. Requesters in these 
categories will be charged for the direct costs to duplicate documents, 
excluding charges for the first 100 pages.
    (i) An educational institution is a preschool, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research. 
To be in this category, a requester must show that the request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are sought to further the scholarly 
research of the institution and are not sought for a commercial or an 
individual use or goal.
    (ii) A non-commercial scientific institution is an institution that 
is not operated on a commercial basis as that term is referenced in 
paragraph (b)(1) of this section, and that is operated solely to 
conduct scientific research the results of which are not intended to 
promote any particular product or industry.
    (iii) A representative of the news media is any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to the public. The term 
``news'' means information that is about current events or that would 
be of current interest to the public. Examples of news media entities 
include television or radio stations broadcasting to the public at 
large and publishers of periodicals (but only in those instances where 
they can qualify as disseminators of news) who make their products 
available for purchase by or subscription by the general public or free 
distribution to the general public. These examples are not intended to 
be all-inclusive. As traditional methods of news delivery evolve (e.g., 
electronic dissemination of newspapers through telecommunications 
services), such alternative media shall be considered to be news-media 
entities. A freelance journalist shall be regarded as working for a 
news-media entity if the journalist can demonstrate a solid basis for 
expecting publication through that entity, whether or not the 
journalist is actually employed by the entity. A publication contract 
would provide a solid basis for such an expectation, but the past 
publication record of a requester may also be considered in making such 
a determination.
    (3) Other requesters. Other requesters not described in paragraphs 
(b)(1) or (2) will be charged for the direct costs to search for and 
duplicate documents, except that the first 100 pages of duplication and 
the first two hours of search time shall be furnished without charge.
    (4) Waiver of small charges. Notwithstanding the provisions of 
paragraphs (b)(1), (2), and (3) of this section, charges will be waived 
if the total chargeable fees for a request are under $25.00.
    (5) Materials available without charge. These provisions do not 
apply to public records, including but not limited to Commission 
decisions, orders, and other public materials that may be made 
available to all requesters without charge.
    (6)(i) Schedule of direct costs. The following uniform schedule of 
fees applies to records held by all constituent units of the 
Commission:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Duplication:
    Paper to paper copy (up to 8.5'' x      $0.14 per page.
     14'')..
    Converting paper into electronic        Quarter hour rate of
     format (scanning).                      operator (Clerical, Other
                                             Professional, Attorney/
                                             Economist).
    Other reproduction (e.g., computer      Actual direct cost,
     disk or printout, microfilm,            including operator time.
     microfiche, or microform).
Electronic Services:
    Preparing electronic records and media  $10.00 per qtr. hour.
    Compact disc (CD).....................  $3.00 per disc.
    DVD...................................  $3.00 per disc.
    Videotape cassette....................  $2.00 per cassette.
Microfilm Services:
    Conversion of existing fiche/film to    $0.14 per page.
     paper.
Other Fees:
    Certification.........................  $25.00 each.
    Express Mail..........................  U.S. Postal Service Market
                                             Rates.
    Records maintained at Iron Mountain or  Contract Rates.
     Washington National Records Center
     facilities (records retrieval, re-
     filing, et cetera).
    Other Services as they arise..........  Market Rates.
------------------------------------------------------------------------

    (ii) Search, review and duplication fees. Agency staff is divided 
into three categories: Clerical, attorney/economist, and other 
professional. Fees for search and review purposes, as well the costs of 
operating duplication machinery such as converting paper to electronic 
format (scanning), are assessed on a quarter-hourly basis, and are 
determined by identifying the category into which the staff member(s) 
conducting the search or review or

[[Page 15685]]

duplication procedure belong(s), determining the average quarter-hourly 
wages of all staff members within that category, and adding 16 percent 
to reflect the cost of additional benefits accorded to government 
employees. The exact fees are calculated and announced periodically and 
are available from the Consumer Response Center, Federal Trade 
Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580; (202) 
326-2222. (7) Untimely responses. Search fees will not be assessed for 
responses that fail to comply with the time limits in which to respond 
to a Freedom of Information Act request, provided at 5 U.S.C. 
552(a)(4)(A)(viii) and Sec.  4.11(a)(1)(ii), if there are no unusual or 
exceptional circumstances, as those terms are defined by 5 U.S.C. 
552(a)(6) and Sec.  4.11(a)(1)(ii). Duplication fees will not be 
assessed for an untimely response, where there are no unusual or 
exceptional circumstances, made to a requester qualifying for one of 
the fee categories set forth in Sec.  4.8(b)(2).
    (c) Information to determine fees. Each request for records shall 
set forth whether the request is made for either commercial or non-
commercial purposes or whether the requester is an educational 
institution, a noncommercial scientific institution, or a 
representative of the news media. The deciding official (as designated 
by the General Counsel) will use this information, any additional 
information provided by the requester, and any other relevant 
information to determine the appropriate fee category in which to place 
the requester. See Sec.  4.11(a)(3)(i)(A)(3) for procedures on 
appealing fee category and fee waiver determinations.
    (d) Agreement to pay fees. (1) Each request that does not contain 
an application for a fee waiver as set forth in Sec.  4.8(e) shall 
specifically indicate that the requester will either:
    (i) Pay, in accordance with Sec.  4.8(b), whatever fees may be 
charged for processing the request; or
    (ii) Pay such fees up to a specified amount, whereby the processing 
of the request would cease once the specified amount has been reached.
    (2) Each request that contains an application for a fee waiver 
shall specifically indicate whether the requester, in the case that the 
fee waiver is not granted, will:
    (i) Pay, in accordance with Sec.  4.8(b), whatever fees may be 
charged for processing the request;
    (ii) Pay fees up to a specified amount, whereby the processing of 
the request would cease once the specified amount has been reached; or
    (iii) Not pay fees, whereby the processing of the request will 
cease at the point fees are to be incurred in accordance with Sec.  
4.8(b).
    (3) If the agreement required by this section is absent, and if the 
estimated fees exceed $25.00, the requester will be advised of the 
estimated fees and the request will not be processed until the 
requester agrees to pay such fees. If the requester does not respond to 
the notification that the estimated fees exceed $25.00 within 20 
calendar days from the date of the notification, the request will be 
closed.
    (e) Public interest fee waivers--(1) Procedures. A requester may 
apply for a waiver of fees. The requester shall explain in sufficient 
detail why a waiver is appropriate under the standards set forth in 
this paragraph. The application shall also include a statement, as 
provided by paragraph (d) of this section, of whether the requester 
agrees to pay costs if the waiver is denied. The deciding official (as 
designated by the General Counsel) will rule on applications for fee 
waivers. To appeal the deciding official's determination of the fee 
waiver, a requester must follow the procedures set forth in Sec.  
4.11(a)(3).
    (2) Standards. (i) The first requirement for a fee waiver is that 
disclosure will likely contribute significantly to public understanding 
of the operations or activities of the government. This requirement 
shall be met if the requester establishes that:
    (A) The subject matter of the requested information concerns the 
operations or activities of the Federal government;
    (B) The disclosure is likely to contribute to an understanding of 
these operations or activities;
    (C) The understanding to which disclosure is likely to contribute 
is the understanding of the public at large, as opposed to the 
understanding of the individual requester or a narrow segment of 
interested persons; (e.g., by providing specific information about the 
requester's expertise in the subject area of the request and about the 
ability and intention to disseminate the information to the public); 
and
    (D) The likely contribution to public understanding will be 
significant.
    (ii) The second requirement for a fee waiver is that the request 
not be primarily in the commercial interest of the requester. This 
requirement shall be met if the requester shows either:
    (A) That the requester does not have a commercial interest that 
would be furthered by the requested disclosure; or
    (B) If the requester does have a commercial interest that would be 
furthered by the requested disclosure, that the public interest in 
disclosure outweighs the identified commercial interest of the 
requester so that the disclosure is not primarily in the requester's 
commercial interest.
    (f) Searches that do not yield responsive records. Charges may be 
assessed for search time even if the agency fails to locate any 
responsive records or if it locates only records that are determined to 
be exempt from disclosure.
* * * * *
    (k) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365), as 
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-
134). The Commission will pursue repayment, where appropriate, by 
employing the provisions of the Debt Collection Act of 1982, as amended 
by the Debt Collection Improvement Act of 1996, the Federal Claims 
Collection Standards (FCSS), 31 CFR 900-904, and any other applicable 
authorities in collecting unpaid fees assessed under this section, 
including disclosure to consumer reporting agencies and use of 
collection agencies. The FTC also reserves the legal right to employ 
other lawful debt collection methods such as alternative dispute 
resolution and arbitration when appropriate.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2014-05955 Filed 3-20-14; 8:45 am]
BILLING CODE 6750-01-P